حسین حقیقت پور

The endowment is one of the traditional economic institutions that have been prevalent among different nations for a long time and according to a more correct point of view, it is not considered as the truth of Shari'a law. In spite of this, in the jurisprudential texts of the Imamiyyah, several conditions have been listed for the validity of this legal act, which will naturally limit its scope. The following article tries to criticize the existing structure and make a new plan by referring to library sources and by using the descriptive-analytical method, in the two fields of jurisprudential foundations and then the corresponding laws. The analysis of the data indicates that the rare generalities governing the endowment demand "freedom of the will of the Endower". The result of these arguments is that the structure of the endowment is exactly similar to the structure of contract by compromise (ṣulḥ), which the holy lawmaker considered the will of both sides of the contract, and made the provisions of its legislation " confirmation of the will of the Endower", just as in the case of ṣulḥ, "confirmation of the compromise of the parties" has been legislated. Finally, based on the innovation of the paper, the lawmaker has confirmed the will of the endower within the scope of its customary structure and has not imposed any special restrictions on the endowment except for the general rules of Shari'a such as the permissibility of the benefit or the legitimacy of the direction and the like.

In the common interpretation of jurists, the distinguishing feature of endowment (waqf) compared to other forms of charity is the dedication of the principal asset along with the allocation of its benefits. Based on this understanding, "permanence" is considered one of the essential characteristics of endowment. On the one hand, this approach necessitates the preservation of capital from financial circulation and wealth reproduction. On the other hand, the necessity of following the endower's will and caution in ensuring the compliance of the endowment's status with it sometimes leads to legal deadlocks. Moreover, with the acceptance of the aforementioned assumption, public acceptance of endowment will be less; because the endowed property usually has a significant economic value. The proposal that can be made to address these dilemmas is to institutionalize "temporary endowment" and promote it. This is an institution that many Islamic countries have occasionally pioneered and succeeded in utilizing, following a less well-known jurisprudential fatwa. In our country, this institution can also be used as one of the best mechanisms for realizing the policies of the Economic Strength. In this paper, the authors try to weaken the foundations of the dominant view by describing and analyzing library resources and relying on the opinions of some great scholars. Then, they strengthen the theoretical basis of "temporary endowment" and finally propose the introduction of this institution into the legal system.

The development of humanitarian rights is an undeniable necessity. The need to formulate this important need of human society during conflicts is an inevitable outcome of war. As Article 48, Paragraph 2 of Articles 51 and 52 of the First Additional Protocol to the Geneva Conventions refers to the fact that attacks should only be carried out against military personnel. The following article, by examining library sources in a comparative-analytical way, aims to develop humanitarian actions from the perspective of the Islamic legal system. The issue is, which trades have support in Islamic and international law? In the Islamic legal system, with what characteristics are people protected and what acts cause people to leave immunity? Searches show that since the beginning, Islam has given special rights to people who are not involved in battles. The present study, by examining the persons who were supported in the narrative sources, reached the conclusion that Islam has supported all those who lack the "description of active action" in war. Immunity is waived only by "direct and indirect participation in the conflict" and "requirement of the principle of military necessity".

The following article was influenced by field studies about one of the most important causes of disputes leading to divorce, that is, men's sexual dissatisfaction. In jurisprudence and legal works, the minimal concept of "compliance" is mentioned to regulate the marital relationship. Despite this, studies show that according to the current situation and social developments, the concept of "compliance" is often not enough to regulate the marital relationship. Accordingly, a more suitable platform should be sought. The present research has been intended to answer this question by using the descriptive-analytical method and relying on library sources. In this regard, it first reviewed the concept of "compliance" and then examined the concept of "proffering" and the relationship between the two. In the following, it has presented the hypothesis of replacement or obligatoriness of proffering and compliance based on jurisprudential sources. The result of this research is the confirmation of the hypothesis of the article documented in reliable Islamic sources.

Chapter 5 of Chapter III of the 1980 Convention on the International Sale of Goods deals with "common rules governing the obligations of the seller and the customer". In the sixth part of this article, entitled "Preservation of goods", according to Article 88, the parties are allowed to resell the goods in six cases: unconventional delay of the customer in delivery, unusual delay of the seller in returning the goods, unusual delay of the customer in Payment of the price, unusual customer delay in paying the maintenance costs of the goods, exposure of the goods to rapid corruption and following an unusual cost for the maintenance of the goods. Benefiting from this article, resale is that after the sale and transfer of ownership of the exchanges, without dissolving the sale, the contracting party can in the direction of seeking compensation or compensation or preventing the loss of the other party, the goods belonging to him to the person Third party to sell. In Iranian law, this institution apparently has no place, but its theoretical origins can be found as a whole in Imami jurisprudence. The present article intends to investigate all six licensed resale titles in the Convention separately and in detail in the criterion of jurisprudential principles by descriptive-analytical method. The result of the research is that the right or obligation to resell the goods is generally acceptable and can be found in the structure of the original jurisprudence, but in some cases, the application of Article 88 can not be applied to the jurisprudential principles, unless the secondary title is applied.

War has long been considered as a state of emergency and has led to permitting some illegitimate acts. One of these acts is to use a trick, which can be very useful. Sometimes a war trick can significantly reduce the loss of life and property of a war. The central element of the trick is to deceive and mislead the other party; While the betrayal of war is based on the same but not permitted in any way, Therefore, determining the domain of war tricks depends on comparing it with the concept of betrayal. In international treaties and custom, these two concepts are distinguished from each other by presenting a specific rule. In Islamic jurisprudence, despite the thematic and rule separation of these two concepts, it seems somewhat difficult to find the criterion of this separation. In this article, using library resources and descriptive-comparative study of the works of Imami and Sunni jurists, the criterion for distinguishing between deceit and betrayal in Islamic law has been determined and compared with the provisions of international treaties. The conceptual distinction between betrayal and deceit, as well as the criterion proposed in the First Protocol to the Geneva Convention, is exactly in line with the view of Islamic jurisprudence.

One of the principles governing the war in contemporary international law is the principle of distinction. According to the Articles 48, 51 (2) and 52 (2) of the Additional Protocol I to Geneva Conventions, attacks can only be carried out against combatants and should not be directed against the civilians. At the same time, according to the third paragraph of Article 51 of the same document, this support will be lost through direct involvement of the civilians during the conflict. However, for some reasons such as the lack of sufficient legal and criminal executive guarantees, the international humanitarian law has become less relevant to its goals. At the height of the degradation of the law of war among nations, Islamic humanitarian law has recognized the principle of distinction as a binding principle and prohibited the invasion against civilians. This immunity is sometimes specifically extended even beyond the contemporary humanitarian law. This theoretical basis will be completed and confirmed in the light of the Prophet's practice, and is evidenced by historical reports about the number of victims of the Prophet's wars. Relying on the analytical-comparative method, the present article seeks to draw on the library sources and to reveal the face of the principle of distinction from the perspective of Islam.

This descriptive-analytical study was conducted with the aim of criticizing and analyzing the differences between couples in the right to enjoyment and rereading its jurisprudential documents; thus, all the related written sources in the field of Imamieh jurisprudence were reviewed. Regarding couples' sexual rights, based on the famous idea of Imamieh jurisprudence, as soon as the husband demands, the wife is obliged to obey, but for the wife it is impossible to demand this right except at long intervals (once every four months) and the husband has no more obligation. The results demonstrated that this idea is not without controversy and their documents cannot confirm such an idea. What is obvious from analyzing the reasons is that just as it is the wife's duty to obey her husband's sexual demands, this right is also considered for the wife, and any discrimination in sexual rights has no legal basis.

War perfidy is among the concepts of international law of armed conflicts and war crimes in international criminal law. It has been attempted in the Hague Convention as well as the Protocol I Additional to the Geneva Conventions to define this concept and clarify it by giving examples; the definitions are mostly derived from international custom. There is no definition of this concept in the military laws of our country and this definition has been approved only in the form of the Bill of Accession of the Islamic Republic of Iran to the Protocol Additional and article 127 of the Armed Forces Penal Code has imperfectly mentioned some examples of this crime. In the jurisprudential heritage of Islam, despite referring to war perfidy through keywords such as Ghadar (treachery), perfidy has not been defined. Accordingly, the author intends in this paper, by using library sources and analytical-comparative method to define war perfidy as a criminal title from the viewpoint of Islamic sources and rectify the elements of this concept. The outcome of this research is that the jurisprudential definition of war perfidy crime is close to the definition provided in Protocol I Additional to the Geneva Conventions with slight difference and preference.

The Feasibility to resale of goods in Shiite 's JurisprudenceThere are some cases in our Jurisprudence and law system relating to legally binding of breaching a promise including right of confiscation ,the right of canceling a contract through contractual options and guarantees. Beside common guarantees in article88 of the convention of International sale of Goods1980(CISG) ,it also enables two sides to sell the goods to a third party to guarantee possible losses in case of breaching a promise .Review of the case in the convention and possibility of it's possibility in Iran's law in the various assumptions of the Convention can be explored in the form of different jurisprudential institutions based on jurisprudence rules including . retaliation would help us to establish the right of resale of goods in our civil and commercial rules .Keywords: resale of goods, receipts, creditor's refusal of receipts, retribution, loss of seller, Imami jurisprudence

In the law of international conventions, under article 51 of the Charter of the United Nations, individual armed attack against countries is permitted only in the form of self-defense. One of the most important grounds for disagreement over self-defense is whether it includes preventive defense in imminent attacks referred to as “anticipatory defense”. Many jurists accept it on the basis of necessity; however, most of them, attempt to deny this inclusion, through realistic interpretation, in order to reduce the dangerous consequences of its abuse. The present paper, through descriptive-analytical method using library sources, seeks to introduce the Islamic strategy with regard to this issue. The findings suggest that authoritative Islamic sources confirm anticipatory defense against imminent attacks; nevertheless, since war methods are included in the Mentaqa Al-Feraq, the Islamic ruler may decide about it on the basis of appropriate interests. The Islamic state ruler has the authority to withdraw from anticipatory defense in case of global consensus on restrict interpretation of defense or formation of international custom in this regard. Such tactic is an obstacle against the supporters of the invasion and also has been approved in the Infallibles' Sunna.

In contemporary researches about the issues concerning fiqh and uṣūl (jurisprudence and the principles of jurisprudence), exploring the
origins and historical traces of concepts and views has gradually become a part of their conceptual and assertoric principles; the method that definitely would be the only way to have a profound understanding of an issue. Likewise, it is necessary to apply this method to have an in-depth research regarding uṣūl ‘amalīyah (practical principles). The paper explores the historical origins of general matters of uṣūl ‘amalīyah and, through an inductive study in earlier Shī‘a and Sunnī texts, intends to answer the questions like: the way these concepts entered in demonstrative jurisprudence and uṣūl discourses, their common characteristics, the earlier scholars’ approach to uṣūl ‘amalīyah, application order of these principles, their position, their relation with each other, and their internal order.
The research concludes that uṣūl ‘amalīyah, however, have firm bases in Imams’ (A.S.) teachings, but as regards compiling, their origins trace back to Sunni demonstrative jurisprudence and uṣūl texts.
From earlier Shī‘a and Sunnī scholars’ point of view, uṣūl ‘amalīyah have two general characteristics: first, these principles are definite, and second, that they come into effect after amārāt (denotations).

The famous hypothesis of the Shia jurisprudents in the subject of the endowment based on the narrations of the prophet of Islam, is just the things and essence. Now the question is brought to the mind of the researcher is that: is it possible to develop the belonging of the endowment to intellectual property and spiritual affairs either or not? In this article, the author according to the descriptive method, contrary to the famous assumption, trying to developing the subject of endowment while proving the intellectual property of intellectual property and the legitimacy of intellectual property. Finally the author in this article believe that the endowment of spiritual affairs is also in the correct position

Qasāma is one of the proofs for homicide، which will be reliable in case of the existence of lawth (strong suspicion). There are two major views on how it is implemented. In sum، the first view deems as necessary swearing fifty oaths by fifty people; however the second view deems as sufficient swearing of fifty oaths by the claimant for proving the crime. The second view is a generally accepted fatwā and the first one is a rare fatwā theme. According to article 248 of the Islamic penal code passed in 1370 sh/1991، the generally accepted view dominated; however، in 1380-81 sh/2001-2002 upon the amelioration of the Islamic penal code، this rule was annulled by the fatwa of the Supreme Leader، and for proving homicide، the legislator deemed as necessary the swearing oaths by fifty people without repeating the oath. In the penal code passed in 1390 sh/2011، this same basis dominates. It is attempted in this article to examine the legal and judicial basis of article 377 of the ameliorated law. The writer believes that، with respect to some proofs existing in the evidences، even if the second view has strong foundations، qasāma is not a merely devotional institution; rather، the legislator has intended it in terms of intermediation and، if necessary، he can change its quality.

With the adoption of the Universal Declaration of Human Rights in 1948، human dignity as an important foundation for explication and formulation of human rights seriously found its way into the legal texts، to the extent that today many countries، including the Islamic Republic of Iran، formulate their constitutions according to human dignity. The present article seeks to examine the status of human dignity in the process of inferring rulings. The writer maintains that “preservation of human dignity” can appropriately be placed in the focal point of a legal rule as one of the general legal law (sharī‘at) purposes and be a document of and provider for some of the legal judgments (fatwās)، especially in the international relationsscene.

Human dignity is examinable at least in three fields: human dignity، Divine dignity، and socio-conventional dignity. In this article، due to time limits، we have only dealt with a part of what can be presented about dignity (karāmat)، i. e.، argumentative proof of human dignity. In general، there are two major systematic methods for confirming the propositions and premises mooted in the context of jurisprudence and Islamic law. The first method is using the jurisprudential (ijtahādī) evidences and the second is determining the practical principle. From the viewpoint of the author، these two methods are apt to come up with for proving the human dignity right. One is following up the jurisprudential evidences of human dignity and the other is being content with the lack of valid reason in suspicious instances for human degradation and، as a result، negating the right to degrade humankind in the light of jurisprudential evidences. The first method is maximal and the second is minimal. In the present work، I have tried to prove the right for human dignity with the use of the above two methods. In this context، too، our time is very limited and for this reason we would address only some of the evidences and promise the respected readers a more detailed discussion at a more sufficient length of time in future.

Given to the age of communication and the need for jurisprudence to answer the issues of community, exploring the rights of journalists is very important. Looking at the present Islamic Republic of Iran press law, this paper considers and analyzes jurisprudentially the journalists’ rights such as freedom of information, safety and criminal immunity. It has been proved in this paper that for the realization of Islamic information, these cases are the minimum requirements and there is much distance to achieve the religious media.

The issue of renunciation (i‘rāḍ) is not discussed separately among the jurists and is only implicitly referred to in some instances. It is also neglected in statutes; and most of legal experts, following the laws and like jurists, have not talked in detail on this issue. Discussing the nature of renunciation, we seek here to elucidate a rather complicated issue, namely, the impact of renunciation. As far as we know, the dominant view among the Imāmī jurists is that renunciation as a legal act is not confirmed by the lawmaker. However, in nearly all instances, the legal experts have opined for the legitimacy of renunciation without having mentioned any justified basis. We presume that renunciation is a legitimate unilateral obligation (īqā‘) and results in the termination of ownership. In this case, the property in instances other than spoils of war is subsumed under the permissible (mubāḥāt).